The Queen v Yatno - [2018] NTSC 53

CITATION:The Queen v Yatno & Anor [2018] NTSC 53
PARTIES:THE QUEEN

v
YATNO, Abdul Khamid B
and
AMINUDIN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21814025 & 21814023
DELIVERED:  2 August 2018
HEARING DATES:  23, 24 & 26 July 2018
JUDGMENT OF:  Blokland J
CATCHWORDS:

CRIMINAL LAW – Evidence – whether presumption in s 146 Evidence (National Uniform Legislation) Act (NT) applies to vessel monitoring system (VMS) data – whether information was insufficient regarding VMS data such that presumption does not apply – presumption directed towards evidence produced by device or process and not content or accuracy of data – evidence given from another witness clarifying VMS process – s 146 presumption includes complex devices and processes – reasonably open on all evidence to find VMS data was produced by a device or process.
CRIMINAL LAW – Evidence – whether further evidence raised doubt regarding operation of presumption – further evidence given of VMS data inconsistent with original evidence – doubt raised such that presumption displaced – Evidence (National Uniform Legislation) Act (NT), s 146(2).
CRIMINAL LAW – Evidence – whether use of further evidence should be limited to voir dire purposes only and not admitted as admission – further evidence given by manager in company employing accused may show fishing boat was within AFZ – evidence not admission as not made by a person who is a party to a proceeding and the circumstances the evidence was created in not sufficiently reliable – use of evidence limited as described – Evidence (National Uniform Legislation) Act (NT), s 136.
CRIMINAL LAW – Evidence – whether exercise books found on-board fishing boat admissible – argued no proof of authorship of entries, that books originated on fishing boat in question, or that entries related to the subject journey – argued Fisheries Officer who produced books and gave evidence made assumptions that entries represented dates – Officer was ad hoc expert on how Indonesian fishers operate due to experience and could give the evidence he did – sufficient provenance established to make exercise books relevant and admissible – Evidence (National Uniform Legislation) Act (NT), s 79.
CRIMINAL LAW – Evidence – whether s 166(2) Fisheries Management Act 1991 (Cth) Certificates admissible – basis of objection unclear – no suggestion Officer who made Certificate not authorised or did not have appropriate delegation – Certificates admissible – Fisheries Management Act 1991 (Cth), s 166(8).
Evidence (National Uniform Legislation) Act (NT) ss 79, 146, 146(2)
Fisheries Management Act 1991 (Cth) ss 100(2), 101(2), 166(1), 166(2), 166(7), 166(8)

Aregar v Cox [2018] NTCA 3; Ministry of Agriculture and Fisheries v Thomas [1994] DCR 486; Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; Norvill v Stokes [2006] NSWLEC 622; Penrose v Nominal Defendant & Anor [2009] NSWSC 1187; United States of America v Brooks, 715F 3d…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Yatno

Details

AGLC: The Queen v Yatno [2018] NTSC 53
Case: [2018] NTSC 53
Decision Date: 2 August 2018

CaseChat Overview and Summary

In the case of The Queen v Yatno, the accused faced criminal charges related to illegal fishing within the Australian Fisheries Zone (AFZ). The dispute primarily centred on the admissibility and interpretation of vessel monitoring system (VMS) data, along with various other pieces of evidence, to determine whether the accused's fishing vessel, the Perintis Jaya 19, had indeed operated within the AFZ. The matter was heard in the Northern Territory Court of Australia.

The court was tasked with several critical legal issues. Firstly, it had to decide whether the presumption in s 146 of the Evidence (National Uniform Legislation) Act (NT) applied to the VMS data provided by Mr Muhammad Ikhsan, who accessed the data from the Indonesian Ministry of Marine Affairs and Fisheries (MMAF). The second issue was whether evidence anticipated by the defence could raise sufficient doubt to displace the presumption under s 146(2) of the UEA. Additionally, the court had to determine the admissibility of exercise books found on board the fishing vessel and whether certain certificates under the Fisheries Management Act 1991 (Cth) were admissible.

The court concluded that the presumption in s 146 of the UEA applied to the VMS data because it was reasonably open to find that the VMS device, if properly used, would ordinarily produce the data presented. The court emphasised that the presumption was directed towards the process by which the data was produced and not the content or accuracy of the data itself. While the defence anticipated presenting evidence that would challenge the presumption, the court found that it was not sufficient to raise the requisite doubt under s 146(2). Furthermore, the court ruled that exercise books found on board were admissible, as the Fisheries Officer who produced them could credibly attest to their relevance and origin. Finally, the court allowed the certificates under the Fisheries Management Act to be admitted, noting that there was no basis to doubt the officer's authority or the proper creation of the certificates.

The court's final orders included the admission of VMS data under the presumption of s 146 of the UEA, the exclusion of anticipated evidence that would have displaced the presumption, the admissibility of the exercise books, and the certificates under the Fisheries Management Act. The court’s decisions provided clarity on the legal standards and evidentiary rules applicable to the case, guiding the trial proceedings accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The form of the current indictment expands the scope of the original indictment which was limited to alleged illegal fishing on 16 February 2018, the date of the apprehension of the Perintis Jaya 19. The expanded dates put any alleged incursion into the AFZ between those dates into issue. The Crown produced and served a significant amount of further evidentiary material following the filing of the current indictment. A voir dire was conducted on a number of issues arising from that material. These are reasons for rulings made at the conclusion of the voir dire and a ruling on one matter which remained outstanding after the voir dire hearing. The operation of the presumption under s 146(2) of the Evidence (National Uniform Legislation) Act (NT) with respect to the evidence of the vessel monitoring system (VMS) data produced by Mr MuhammadIkhsan The Crown tendered a statutory declaration sworn on 1 June 2018 by Mr Muhammad Ikhsan which sets out the steps taken by him at the request of the Australian Fisheries Management Authority (AFMA) to retrieve VMS information on the Perintis Jaya 19 from 1 January 2018 to 24 February 2018. Mr Ikhsan is the head of Operation Strategy Directorate-General Marine and Fisheries Surveillance within the Indonesian Ministry of Marine Affairs and Fisheries (MMAF). As part of his employment, Mr Ikhsan has access to the MMAF VMS system. He accessed the information requested and forwarded it to AFMA. Annexed to his affidavit are tables including dates and what appear to be coordinates arranged in columns next to entries appearing in the first column stating “Perintis Jaya 19”. On its face, the data appears to relate to the GPS positions of the Perintis Jaya 19. With other evidence the Crown anticipates will prove the position of the AFZ, the Crown would use the data annexed to Mr Ikhsan’s statutory declaration to attempt to prove the position of the Perintis Jaya 19, and that it was inside the AFZ numerous times during the relevant period. On behalf of the accused, objection was taken to the Crown’s reliance on the presumption established by s 146 of the Evidence (National Uniform Legislation) Act (“UEA”) which deals with evidence produced by processes, machines and devices. The objection was dealt with in two stages. The first was in the nature of a threshold issue, namely whether s 146 could properly apply to the VMS data provided by Mr Ikhsan. The second was that if s 146 potentially applied, a ruling was to be sought based on evidence the defence anticipated would be adduced later in the voir dire which, it was argued, would raise a doubt about the presumption in the terms contemplated by s 146(2). Section 146 of the UEA provides:(1)This section applies to a document or thing:(a)that is produced wholly or partly by a device or process; and(b)that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.(2)If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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